Former justice takes issue with state Supreme Court

 by Tom Kirvan

Legal News
 
Her motto is “Do Right and Fear Not.”

Critics of retired Michigan Supreme Court Justice Elizabeth A. Weaver may question her desire to carry out the former, but few if any would doubt her resolve in accomplishing the latter.

As proof, look no further than a book she co-authored last year with David B. Schock, Ph.D. It’s hard to ignore the breadth of the title: Judicial Deceit: Tyranny & Unnecessary Secrecy at the Michigan Supreme Court.

Weaver, who served on the Supreme Court from 1995 until retirement in 2010, has never been shy about voicing her opinion, a trait that has charmed some and infuriated others. In the opening chapter, Weaver contends that an evil force held sway in the early part of the new millennium.

“How do you hijack a state supreme court?” Schock asked in the book’s opening line. “In Michigan, it took a confluence of factors... including the unchecked appointment powers of a Governor who was determined to control the courts (as he did the executive and legislative branches) and justices beholden to him who were willing to ignore the common law, the state Constitution, and common sense.”

Throughout, Weaver drives home that their acts often would be “deceitful” and “tyrannical,” and carried out in “unnecessary secrecy” to the detriment of the public trust.

“That took some doing,” Schock asserted. “After all, the justices usually arrived at the high court by the process of election. But in Michigan, when a justice resigns, the Governor steps in to appoint whomever he or she chooses. That happened three times – well, three and a half – in a span of two years in the last half of the 1990s.  The result was a stacked court... whose appointees were less than qualified – through lack of experience or judicial temperament – for their new jobs. Oh, they were plenty smart, but that wasn’t enough.

“It’s probably happened before in this state... but we might not know about individual stories that make up this... narrative unless there was someone on the inside who was keeping track,” he wrote.

That person, of course, was Justice Elizabeth “Betty” Ann Weaver, a former state Court of Appeals judge who served as chief justice of the Supreme Court from 1999 to 2001. Weaver, who grew up in New Orleans, earned her bachelor and law degrees from Tulane University. Following graduation, Weaver took a job as a title specialist for Chevron Oil. But a desire to “broaden my horizons” led her to a job as a counselor and French teacher at a private school in Glen Arbor near Traverse City.

Before long, the transplant from the Bayou would begin to call northern Michigan home, a place where she would combine a teaching and legal career en route to a run for a probate court judgeship in Leelanau County in 1974. In that race, against an incumbent, Weaver won by 400 votes, startng a 12-year stay on the county bench.

It would be the first of a series of election victories for Weaver, three at the county level and five more in state appellate court races. She is proud to say that she “was elected and re-elected – never appointed – by the people of Michigan to each judgeship.”

After serving eight years on the Michigan Court of Appeals, Weaver decided to run for the state Supreme Court in 1994 with the backing of Republican Gov. John Engler and Lt. Gov. Connie Binsfeld. As a candidate from the sparsely populated northern region of the state, Weaver was considered somewhat of a long shot in the race, which included incumbent Justice Conrad Mallett Jr., and two other well-known judges. But Weaver captured one of two openings on the court. She would be re-elected twice..

The origins of the 28-book can be traced to a documentary Schock was making, You and the Courts. “Most people don’t know what the various courts do,” Schock said. “District? Circuit? Probate? How to convey the differences among
the courts to an audience?

“Videographer Phil Blauw and I took to the sidewalks to informally survey people about their perceptions,” Schock related. “The results were interesting and often hilarious.”

In the 2006 film, then-Justice Weaver helped set the record straight, delivering the “overview of the courts,” according to Schock. She was not his first choice; Schock thought  then-Chief Justice Clifford Taylor would be the logical choice. An adviser recommended Weaver instead. 

Schock said “her answers went a little long – not a surprise to anyone who knows her; she is voluble,” but she also is “brilliant” and “articulate,” and can explain difficult concepts with relative ease. Schock heard Weaver tell at dinner of “smothering of dissenting voices” on the Supreme Court, of “backstabbing, character assassination, intrigue.”

Several years later their thoughts would converge in a decision to write the book.

“The book developed in a way I’ve not experienced before, but it worked,” Schock said. “First, we discussed the scope of the book... the stories we’d tell. Next, I put Elizabeth on camera..., and then that was transcribed. Then I started deeper researching; always there was documentation and contextual matter needed. 

“Many of the documents I cited came from her – she has saved everything, including some really inflammatory e-mails from other justices. [Some] others had to be found in obscure places.”

Then he would write, submit a draft and send it to Weaver for editing. “She’s a very fine editor and not heavy handed,” he said. “She was pretty clear about where she stopped and I started in terms of the voice of the book – and there are two distinct voices.”

Indeed there are, with Weaver supplying her view in italics. And even those who might object to Weaver’s views will have to admit the book is well written and a lively look at the inner workings of the court.

It has been well documented that Weaver was at odds with the four Republicans on the court. Each has a special place or two in the book.

Weaver, not surprisingly, has been harpooned by many for her outspokenness.

Despite the criticism that she has faced, Schock said, “She tried never to take it personally.” Her focus, instead, has been on a seven-point plan for court reform, including a proposal to dispense with political party nominations for candidates in favor of prospective justices earning a spot on the ballot by petition. She also calls for a 14-year limit on the bench, and for public funding to be provided for campaigns.

Weaver said in a phone interview that she has been heartened by the public’s response. “I felt a sense of duty to bring the truth to light about the court and its operation, and it has been gratifying to receive so much positive feedback from those who have read the book,” Weaver said. “This is not a tell-all book. It’s more in the frame of what in ‘The Wizard of Oz’ Toto and Dorothy did in pulling down the curtain to reveal deceit and tyranny. I’ve always believed that if you are a steward of something, such as the judiciary and the public trust, and you see a danger, then you have a duty to give warning or you are to be held responsible for the outcome.”

The book is available in paperback and as an e-book at www.judicialdeceit.com, or through Amazon.com.